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Estate Planning: Not a Game of Hide and Seek

This week’s blog is a guest blog from Attorney Jennifer Luitjens of Jarrett & Luitjens Estate & Elder Law.

Games are usually a lot of fun, but you don’t really want to play hide and seek with your estate planning documents.  After you have signed and implemented your plan, you may want privacy, but you should not hide your documents from everyone.  If you excel at concealing, it may not be found when needed.  How and with whom you share will depend upon the document and your goals, but here are some considerations:

Will — while this document has no effect until after death, it has zero effect if never discovered; you can store the original:

  • In a fire-proof safe at home, if someone else knows location and its key
  • In a safe deposit box at a bank, if someone else has joint access and a key to the box; without a surviving joint owner, no one will be allowed in the safe deposit box after your death without Court authority; if the joint owner cannot locate a key, there will likely be additional procedures and costs involved in accessing the box
  • At the Probate Court in the county in which you live, for a modest fee (currently $30); however, if you move out of the county or update your will, it will be necessary to either retrieve your original will or replace it with the updated version

Trust — a revocable living trust is effective during your lifetime, and the Trustee may need to produce a copy of it, or a Certificate of Trust, when managing its assets.  While you may be your own Trustee, if you resign, become incapacitated, or die, a Successor Trustee will need to have a copy.  A copy is often acceptable in place of an original, but either should be stored as follows:

  • In a fire-proof safe (see prior Will discussion); or
  • In a safe deposit box (see prior Will discussion)

Power of Attorney — although a financial Power of Attorney is extremely powerful and susceptible to abuse by the named agent, it is only effective during your lifetime, and its existence should at least be known to a trusted individual.  Many powers of attorney are effective immediately and do not require a determination of medical incapacity, but they have no useful life if undiscovered.  Copies will often be accepted, but an original is sometimes necessary, such as for recording purposes.  The original, and any copies, should be stored as follows:

  • In a fire-proof safe (see prior Will discussion); or
  • In a safe deposit box (see prior Will discussion)

Advance Directive — an advance health care directive (Living Will) also grants an enormous amount of decision-making power to the named agent, but it cannot override the wishes of the patient.  To ensure it is available when medically needed, you should share it as follows:

  • With your medical provider;
  • With your named agent(s); and
  • Filed with Vermont’s free Advance Directive Registry

Jennifer R. Luitjens is a partner at Jarrett & Luitjens Estate & Elder Law in South Burlington, Vermont. She is certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation (NELF), a non-profit organization accredited by the American Bar Association.  Please visit her at https://vtelaw.com/

This blog is published to provide you with general information only, and is not intended to provide specific or comprehensive advice.  Money Care, LLC encourages individuals to seek advice from competent professionals when appropriate.